September 16, 2005

Should American judges cite foreign law?

Lots of conservatives are up in arms over judges quoting foreign law in making their decisions, but it's important not to throw out the baby with the bathwater over this.

American judges have always cited English common law cases.. For example, the Constitution guarantees "the Privilege of the Writ of Habeas Corpus," but to understand precisely what the mysterious phrase "habeas corpus" means, American judges still had to look at precedents that had accumulated over hundreds of years under English law.

More recent innovations in the English common law, such as the 1843 M'Naghten Rule defining "criminal insanity," have also been assimilated by American judges (although some frontier states following the Revolution passed Anglophobic laws barring the use of English cases decided after July 4, 1776, but those prohibitions had been repealed by around 1820). The common law is a crucial joint heritage of the English-speaking countries.

This raises the more general contradiction between the strict constructionist stance and the common law, which is both conservative and evolutionary. The common law grows kind of like Wikipedia, although it contains a strong bias toward precedent. But in a common law system, when new situations arise, judges are supposed to make up new rules, although the less pure concoction and the more emulation and adaptation the better -- which is one reason they like to look at what judges in other countries have done.

In practice, strict constructionism and the common law tradition aren't really at each other's throats that much, because the former is largely a philosophy for interpreting the Constitution, which deals with the rules of government, while the common law is much more focused upon the rules of private life, such as contract and inheritance. It's not unreasonable to discourage to discourage judges from relying heavily upon foreign law in interpreting the U.S. Constitution, but there are less glamorous areas where surveying the best that's been done abroad wouldn't hurt.

My published articles are archived at -- Steve Sailer

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